TMI Blog2018 (5) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... tum of excise duty by adding education cess again not arises. Education cess not payable for third time as contended by the department - demand do not sustain - appeal allowed - decided in favor of appellant. - Appeal No. E/2262/2011-EX [ DB ] - Final Order No. 62400/2018 - Dated:- 15-5-2018 - Hon ble Mr. Ashok Jindal, Member (Judicial) And Hon ble Mr. Devender Singh, Member (Technical) For the Appellant : Mr. V.R. Sethi, Consultant For the Respondent : Mr. Vijay Gupta, A.R. ORDER Per : Devender Singh The appellant is in appeal against the impugned order dt. 28.06.2011. 2. Brief facts of the case are that the appellant is a 100% Export Oriented Unit and is engaged in the manufacturing of Thread Rolling Dies. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals). 5. Heard both the sides and perused the record. 6. We find that the issue of leviability of education cess and higher education cess for third time on the duty of excise under proviso to Section 3(1) of the Act in respect of the clearance of goods in DTA made by 100% EOU is no longer res integra and has been decided in the favour of the assessee by this Tribunal in the case of Sarla Performance Fibers Ltd (supra), wherein this Tribunal has held as below:- 75. Learned DR has relied upon the decision of the Tribunal in the case of Favorite Industries [2003 (156) E.L.T. 802 (Tri - Mumbai)] in support of his contention that the deeming provisions contained in the import export policy is limited to the benefits that would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Finance Act, 1994, the education cess leviable on excisable goods shall be in addition to any other duties of excise chargeable on such goods. In fact this is the ground on which the department has proceeded to add education cess once again after arriving at aggregate of customs duties. The answer to this is the conclusion drawn by us with regard to the contention that education cess is only a surcharge and is in the nature of enhancement of duties. Therefore, once education cess is added to the customs duties to arrive at aggregate of customs duties, the question of charging education cess again does not arise. Because once it is a enhancement, it is part of the relevant type of the duty. What is required for the purpose of proviso to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other law in force; and (c) Service tax levied under Section 66 of the Finance Act, 1994. Since the cess levied as surcharge under Section 91 of Finance Act, 2004 and Section 136 of Finance Act, 2007 has to be on the existing levies, the existing levies, obviously, would not include this cess. For this reason only, Sections 93 94 of Finance Act, 2004 and Sections 138 and 139 of Finance Act, 2007 while defining the measure of education cess and S H cess in respect of excisable goods and imported goods respectively, specifically provide that the aggregate of duties of excise or aggregate of duties of customs levied by the Central Government in the Ministry of Finance (Deptt. of Revenue), on which this cess is to be levied as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... central excise duty and in terms of proviso to Section 3(1) of Central Excise Act, 1944, the measure of the excise duty leviable is aggregate of duties of customs charged on import of like goods into India under Customs Act, 1962 read with Indian Customs Tariff Act, 1975 or any other law for the time being in force, this aggregate of duties of customs on which education cess under Section 93 of Finance Act, 2004 and S H cess under Section 138 of Finance Act, 2007 is to be charged, would not include education cess and S H cess under Section 94 of Finance Act, 2004 and Section 139 of Finance Act, 2007. In other words, the education cess and S H cess would be chargeable only once under Section 93 of Finance Act, 2004 and Section 138 of Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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